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[2019] ZAFSHC 107
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MEC: Department of Public Works & Infrastructure, Free State Province v Tuscaloosa 21 (Pty) Ltd (3778/2017) [2019] ZAFSHC 107 (27 June 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no: 3778/2017
In
the matter between:
MEC:
DEPARTMENT OF PUBLIC WORKS &
INFRASTRUCTURE,
FREE STATE PROVINCE
Plaintiff/Respondent
And
TUSCALOOSA
21 (PTY) LTD
Defendant/Excipient
CORAM:
MOROBANE,
AJ
JUDGMENT:
MOROBANE,
AJ
HEARD
ON:
17
MAY 2019
DELIVERED
ON:
27
JUNE 2019
[1]
The
defendant noted an exception against the plaintiff’s amended
particulars of claim dated 25 September 2018 on the grounds
that they
do not sustain a cause of action, alternatively, are vague and
embarrassing. This is the fifth exception to be noted
and it is
opposed by the plaintiff.
[2]
On
16 October 2018 the defendant filed a notice in terms of Rule 23(1)
notifying the plaintiff of its intention to except against
his
amended particulars of claim. Several causes of complaint, as more
fully discussed below, were raised as the grounds upon which
the
exception is based. The plaintiff was invited to remove the cause of
complaint within the prescribed period, but failed to
do so. As a
result, the exception was enrolled for hearing. In his prayers, the
defendant seeks an order upholding the exception
and for the
dismissal of the action with costs.
[3]
In
terms of the Uniform Rules of Court relating to the pleadings
generally, Rule 18(4) stipulates that every pleading shall contain
a
clear and concise statement of the material facts upon which the
pleader relies for his claim, defence or answer to any pleading,
as
the case may be, with sufficient particularity to enable the opposite
party to reply thereto. A party is bound to the issues
he raised in
the notice of exception. Consequently, the court will not entertain
any issue which was not raised when the notice
of exception was
filed.
[4]
In
McKelvey v Cowan NO
[1]
the court considered exception to the pleading and stated that: ‘It
is a first principle in dealing with matters of exception
that, if
evidence can be led which can disclose a cause of action alleged in
the pleading, that particular pleading is not excipiable.
A pleading
is only excipiable on the basis that no possible evidence led on the
pleading can disclose a cause of action.’
[5]
In
McKenzie v Farmers’ Co-operative Meat Industries Ltd
[2]
cause of action was defined as:
‘…
every
fact which it would be necessary for the plaintiff to prove, if
traversed, in order to support his right to judgment of the
court. It
does not comprise every piece of evidence which is necessary to prove
each fact, but every fact which is necessary to
be proved.’
[6]
The
excipient has the duty to persuade the Court that, upon every
interpretation which the pleading can reasonably bear, no cause
of
action or defence is disclosed. In Trustees, BIR Fund v Break Through
Investment CC
[3]
the court stated that:
‘
If
an alternative interpretation is available, the court will not accept
a meaning which would lead to absurd practical and commercial
consequences.’
[7]
The
defendant’s main contention is that the plaintiff’s
amended particulars of claim does not sustain a course of action.
On
the contrary, plaintiff pleaded that its cause of action is premised
on unjustified enrichment and that the necessary averments
to sustain
such a cause of action have been pleaded and properly set out. The
plaintiff’s particulars of claim must assert
the essential
allegations based on unjustified enrichment. That is, the enrichment
of the defendant; the corresponding impoverishment
of the plaintiff;
a causal link between the defendant’s enrichment and the
plaintiff’s impoverishment; and that the
enrichment must be
unjustified or sine causa.
[8]
In
the alternative, the defendant relied on the following grounds as set
out in the notice:
Plaintiff’s
locus standi and acting as an agent
[9]
The
defendant alleged that the plaintiff has no locus standi in iudicio,
but the department of Cooperative Governance and Traditional
Affairs
(“COGTA”). It further alleged that the plaintiff acted as
an agent for and on behalf of other Government Departments
in the
Free State for acquiring and providing accommodation and property
management services. The plaintiff is a department of
the Provincial
Government of the Free State and, according to schedule ‘B, the
‘lettable’ space shows that it
was occupied by another
department of COGTA. Upon perusal of the lease agreement, it is clear
that the plaintiff is the lessee
and/or tenant and also a party to
the agreement. That is: Free State Provincial Government (Department
of Public Works and Rural
Development). The grounds relied upon for
exception have no basis and are dismissed.
Express
and tacit terms of the agreement
[10]
The
defendant avers that at paragraph 4 of the amended particulars of
claim, the plaintiff, inter alia, relies on tacit terms of
the lease
agreement. That the tacit terms relied upon by the plaintiff are
contradictory to his plea in paragraph 4.9 thereof.
However, the
defendant failed to indicate which alleged tacit terms are in
contradiction to the express terms of the agreement.
Upon perusal of
the amended particulars of claim, the tacit terms alleged by the
plaintiff are in fact contained in the lease agreement.
Therefore,
there is no contradiction and this ground of exception must fail.
[11]
The
defendant alleged further that the plaintiff’s reliance on any
agreement entered into between the parties regarding the
occupation
of the premises and the payment of rentals which ‘were due’
prior to the signing of the lease agreement
on 20 May 2009, do not
sustain the cause of action. On proper interpretation of clause 12.4
under the heading: Occupation, the
plaintiff would have no right of
occupation and no claim to the existence of tenancy until the lease
agreement is signed by both
parties. Accordingly, the terms of the
lease were encapsulated in the agreement which is binding on both
parties. The parties agreed
that the period of lease commenced on 1
June 2008 to 30 May 2014. Therefore, the grounds relied upon by the
defendant in regard
to the occupation of the premises and the rentals
paid prior to signing the agreement should be dismissed.
[12]
As
regards the plaintiff’s failure to comply with the provisions
of Rule 18(6), this ground of complaint must fail since the
relevant
part of the lease agreement was attached to the plaintiff’s
particulars of claim. In Kudu Granite Operations v Caterna
Ltd,
[4]
the contractual provisions are largely irrelevant in an action
premised on unjust enrichment. On that note, the ground of exception
raised herein must be dismissed.
[13]
In
Vermeulen v Goose Valley Investment (Pty) Ltd
[5]
the court stated:
“
It
is trite law that an exception that a cause of action is not
disclosed by a pleading cannot succeed unless it is shown that ex
facie the allegations made by a plaintiff and any document upon which
his or her cause of action may be based, the claim is (not
may be)
bad in law.”
[14]
In
my view, the allegations made by the plaintiff in his amended
particulars of claim can sustain his claim and are neither vague
nor
embarrassing. Pleadings must be read as a whole and no paragraph can
be read in isolation.
[6]
The plaintiff’s amended particulars of claim are not excipiable
and the grounds of exception noted by the defendant ought
to fail
under the circumstance.
[15]
I
accordingly make the following order:
1.
The
exception is dismissed with costs.
V.M.
MOROBANE, AJ
On
behalf of the excipient:
Adv. AJR van Rhyn SC
Instructed by:
Rosendorff Reitz Barry
BLOEMFONTEIN
On
behalf of the respondent:
Adv
LT Sibeko SC, with him
Adv
DR Thompson
Instructed by:
State
Attorney BLOEMFONTEIN
[1]
McKelvey v Cowan NO
1980 (4) SA 525
(Z) at 526D-E.
[2]
McKenzie v Farmers’ Co-operative Meat Industries Ltd
1922 AD
16
at 23
[3]
Trustees, Bus Industry Restructuring Fund v Break Through
Investments and Others CC
2008 (1) SA 67
(SCA) at 73E
[4]
Kudu Granite Operations(Pty) Ltd v Caterna Limited [2003)
3 All SA 1
(SCA) at para 15
[5]
Vermeulen v Goose Valley Investment (Pty) Ltd
2001 (3) SA 986
(SCA)
at 997A-B.
[6]
Herbstein & Van Winsen: The Civil Practice of the High Courts of
South Africa, 5th Ed. Vol 1 at 634-638